THE DIRECTOR OF PUBLIC PROCECUTIONS v ALLY NUR DIRIE AND ANOTHER 1988 TLR 252 (CA)

 

THE DIRECTOR OF PUBLIC PROCECUTIONS v ALLY NUR DIRIE AND ANOTHER 1988 TLR 252 (CA)

Court Court of Appeal of Tanzania - Dar Es Salaam

Judge Nyalali CJ, Makame JJA and Omar JJA

H 23 December, 1988

Flynote

Criminal Practice and Procedure - Bail - Offence committee under Economic and Organized Crime Control Act - Courts to hear bail applications.

Criminal Practice and Procedure - Bail - Section 148(4) - D.P.P's certificate - When competent.

Criminal Practice and Procedure - Bail - D.P.P.s certificate - Whether D.P.P. is required to specify or disclose the nature of A interest concerned - Section 148(4) of the Criminal Procedure Act construed.

Criminal Practice and Procedure - Bail - Expressions "pending trial" and "pending appeal" - Construed - Section 148(4) C.P.A.

Criminal Practice and Procedure - Bail - First application dismissed - Whether another judge of same court may entertain a second application - Practice.

Criminal Practice and Procedure - Bail - D.P.P.s certificate - Whether can be filed in the High Court.

-Headnote

The respondents were arrested on allegations of being involved in an economic and organized crime. They appeared before the District Court to be informed of the charge facing them. After that they applied to the High Court for bail, but the Court rejected the application. After some time they filed another application to the same court but this time the application was heard by another judge. In the course of the hearing, a certificate by the D.P.P. in terms of section 148(4) of the Criminal Procedure Act, 1985 was produced. The judge granted the application whereupon the D.P.P. appealed.

The Court of Appeal considered the competency of the 2nd application and the correctness of the decision on that application.

Held: (i) The D.P.P. is entitled under section 148(4) of the Criminal Procedure Act, 1985, to file a certificate of objection against the release on bail of an accused person by the High Court;

(ii) section 148(4) does not require the DPP to specify or disclose the nature of the interest concerned;

(iii) the D.P.P.s certificate must be filed either pending trial or pending appeal;

(iv) a trial or appeal is pending in terms of section 148(4) of the C.P.A. as soon as the trial or the appeal has commenced according to law;

(v) a trial commences when an accused person appears before a court or tribunal competent to convict or acquit and after he has been informed of the charge and required to plead;

(vi) in the present case, where the respondents appeared before the District Court which was not competent to try the economic crime case, the trial had not commenced at the time the D.P.P filed his certificate objecting bail. The certificate was premature; I

(vii) where a bail application is rejected by a judge or A magistrate and a subsequent application is made before the same court, the proper practice is to bring the subsequent application before the same judge or magistrate, unless it is impracticable to do so;

(viii) since the ground for rejecting the first bail application was still valid it was wrong for the High Court to B grant the second application.

Case Information

Appeal allowed.

Teemba, for the appellant

D'Souza, for the Respondents

[zJDz]Judgment

Nyalali, C.J.: This appeal concerns a decision of the High Court at Arusha, Mwakibete, J. on a bail application in D an economic and organized crime case. The respondents, namely Ally Nur Dirie and Abdallah Nikedi appeared before the District Court of Arusha on the 25th March, 1988 on a charge of unlawful possession of government trophy c/s 67(1)(a) and (b) of the Wildlife Conservation Act. No. 12 of 1974 and section 56(1) and 59(2) of the Economic and Organized Crime Control Act No. 13 of 1984 read together with paragraph 16(b) of the First E Schedule to same Act. They were informed of the charge and duly advised of their rights to apply for bail to the High Court in terms of sub-section (4) of section 29 as amended by Act No. 12 of 1987. Subsequently and in consequence thereof, the respondents petitioned for bail in the High Court. Their petition was heard by Chua J. on F the 22nd April, 1988 and he rejected the petition on the same day. On the 2nd June, 1988 the respondents filed a fresh petition in the same Court for bail. This time the petition was heard by Mwakibete J. on 7th June, 1988. In the course of the hearing a Certificate by the Director of Public Prosecutions in terms of section 148(4) of the Criminal Procedure Act, 1985 was produced. The court reserved its decision until 22nd June,1988 when it granted the petition on certain conditions of bail. The Director of Public Prosecutions was aggrieved by the decision of the High Court hence this appeal to this Court. Mr. Teemba, learned Principal State Attorney, appeared for the appellant, whereas Mr. D'Souza, learned advocate represented the respondents in the appeal.

Four grounds of appeal were submitted on behalf of the D.P.P. but they all raise one basic question, that is, whether the High Court, Mwakibete, J. was correct in entertaining and granting the petition. There are two aspects of this question, the first concerns the competency of the application heard by Mwakibete, J. and the other relates to the correctness of the decision on A that application. We start with the second aspect.

As already mentioned, the Director of Public Prosecutions had filed a Certificate objecting to bail under the provisions of section 148(4) of the Criminal Procedure Act 1985. Undoubtedly, the Criminal Procedure Act applies B to bail applications in the High Court in economic and organized crime cases by virtue of the provisions of section 28 of the Economic and Organized Crime Control Act, 1984 except to the extent that it is provided to the contrary under the latter Act. On that basis, the Director of Public Prosecutions hereinafter called the D.P.P. is entitled under section 148(4) of the Criminal Procedure Act to file a certificate of objection against the release on bail of an adduced person by the High Court. In the present case the D.P.P did exactly that. Section 148(4) states:

Notwithstanding anything in this section contained no person shall, for such period as the court shall consider necessary in the circumstances of the case concerned, be admitted to bail, either pending trial or pending appeal, if the Director of Public Prosecutions certifies in writing that it is likely that the safety or interests of the Republic would thereby be prejudiced.

Mwakibete, J. specifically considered the effect of the certificate filed by the D.P.P. under the circumstances of this case, the respondents had not yet been committed for trial by the Economic Crimes Court under the provisions of F section 30 for the Economic and Organized Crime Control Act, and their case was still under investigation and inquiry in the District Court as provided under section 29 of the same Act. The learned trial judge stated in the relevant parts of his ruling as follows:

Yet the case against the applications appears not ready for trial, for the applicants/accused have not even been committed for trial by the Court - which means that the question of the applicants awaiting trial or appeal in terms of section 148(4) H C.P.A. does not arise.... But until committed for trial, or until the filing of the information, there can be no question of the applicants in matter awaiting trial.

I suspect that the D.P.P. was under the impression that the applicants/accused had already been committed for trial or that by the time the certificate reached Arusha from Dar es Salaam, committal process would have been completed otherwise I can not see how the applicants could be said to be awaiting trial or appeal when the matter is still at its preliminary stages with the R/M's Court. Accordingly I find myself unable to see the relevance/significance of the certificate B vis-a-vis this application.

The learned judge continued towards the end of his ruling by stating:

C ... and if I were to treat the certificate by the D.P.P. as properly filed I would have pointed out that - there was need on the part of the prosecution to spell out, to the satisfaction of the Court, precisely what interests of the United Republic would thereby be prejudiced if the applicants in this matter were to be released on bail - to enable the court to determine a reasonable D period in terms of section 148(4) C.P.A., in the circumstances of this case.

Mr. Teemba has vigorously challenged these views and findings of law by the learned trial judge. He submitted in E effect that a trial is construed to be pending against an accused person whenever that person appears in court and the appropriate charges are put to him. He was however unable to cite to us any authority in support of his stand.

As to the other limb of the learned judge's views on the contents of the certificate, Mr. Teemba submitted in effect that F the words used in the relevant statute are so clear that there is no room for requiring the D.P.P. to specify in the certificate the nature of the interests of the United Republic that are liable to be prejudiced by granting bail. He based his submission on the established rules of construction of statutes.

Mr. D'Souza for the respondents supported the views and findings of the court below. 

Let us start with the last limb of the submissions. We agree with Mr. Teemba's contention. The words of section 148(4) given their ordinary H meaning according to the established rules of construction are so clear that they do not require the D.P.P. to specify or disclose the nature of the interest concerned. In our considered opinion, it is sufficient if the D.P.P. "certifies in writing that it is likely that the safety or interests of the United Republic would thereby be prejudiced". The learned I trial judge was of the view that specify in the nature of interest or safety concerned is necessary to enable the Court to determine the reasonable period within which bail is to be denied. With due respect to the learned judge he appears to have confused two issues A which ought to be treated and decided separately.

Firstly, there is the issue of validity of the D.P.P.'s certificate. This is governed by the following conditions:

(i) The D.P.P. must certify in writing and B

(ii) The certificate must be to the effect that the safety or interests of the United Republic are likely to be prejudiced by granting bail in the case; and

(iii) The certificate must relate to a criminal case either pending trial or pending appeal.

Secondly, there is the issue of the period during which an accused person is not to be released on bail. In the terms of section 148(4) the period is determined by the court upon the criteria stated therein, that is, "such period as the court shall consider necessary in the circumstances of the case concerned". It is wrong in our view to construe these provisions narrowly so as to limit the circumstance of a case to the interests or safety of the United Republic referred to in the D.P.P.'s certificate. Such interests or safety may often be relevant circumstances, in which case details of it will be given to the court in the course of determining the period necessary for denial of bail, but they are not supposed to be the only circumstances which the court has to consider.

Let us now turn to the first limb of the submissions - that is concerning the timing of the D.P.P.'s certificate. We start F by asking ourselves "what do the expressions 'pending trial' or 'pending appeal' mean in terms of section 148(4) of the Criminal Procedure Act?" Mr. Teemba cited similar provisions under section 35(2) of the Economic and Organized Crime Control Act, 1984 and section 19 of the National Security Act, 1970. Unfortunately none of these G Acts defines what a pending trial or pending appeal is. We had to do our own research after hearing the appeal on the 15th November, 1988 and this explains the delay in delivering this judgment. Our research has shown that the expressions "pending trial" or "pending appeal" have a special legal meaning which H is different from their ordinary meaning. These expressions do not mean 'awaiting trial' or 'awaiting appeal' as used by the learned trial judge. According to ... (2nd Edition, Vol. 2, page 1344): "An action, arbitration or other  proceeding is said to be pendent after it has been commenced and before the final judgment or award has been given. Pendency is the state of being pendent". This definition is similar to that used in India where our procedural law has its precursor. In the case of Asgarali Nazarali State of Bombay (1957) ATR S . P.503, it was stated, ... a legal proceeding is pending as soon as commenced and until it is concluded i.e. so long as the court having original cognizance of it can make an order on the matters in issue, or to be dealt with therein".

On the basis of this authority which we accept as correct, we thus find that a trial or appeal is pending in terms of section 148(4) of the Criminal Procedure Act as soon as the trial or the appeal has commenced according to law. But then the question arises - when does a trial or appeal commence according to law? In our considered opinion, a trial commences when an accused person appears before a court or tribunal competent to convict or acquit him and after he has been put on trial by informing him of the charge and requiring him to plead. We are supported by authority for this view. According to Somoni's Code of Criminal Procedure 13th Edition at p.22-23

it is stated:

In a case exclusively triable by a court of Session, the trial begins only when after the commitment and the charge is framed E and the accused appears at the session.

In our view a trial does not commence when an accused person appears before a tribunal or court which is not competent to try him or when he appears before a competent tribunal or court but is not called upon to plead to the charge facing him.

In the case of an appeal, the position is slightly different from a trial, because under our procedural law, the physical participation of an accused person is fundamental to a trial, whereas in an appeal his physical participation is not a basic element of the appellate process which relies heavily on the record of the proceedings of the lower court. That is why there is provision for summary disposal of an appeal without appearance by either party to the appeal (see section 364 of the Criminal Procedure Act). So in the case of an appeal, it commences, and therefore becomes H pending after the filing of prescribed documents, usually the Notice of Appeal and the Petition of Appeal (see sections 361 and 362 of the Criminal Procedure Act).

In the present case therefore, where the respondents appeared before the District Court of Arusha District, which I was not competent to try the economic crime case in terms of section 29 and 30 of the Economic and Organized Crime Control Act, 1984, the trial had not commenced at the time the A D.P.P. filed his certificate objecting to bail. In otherwords, the certificate was premature.

To that extent we concur with the conclusion of the learned trial judge on this point. If the Legislature wishes to enable the D.P.P. to file such certificate even before the commencement of a trial, a suitable amendment of the B relevant law is necessary. We now come to the issue of the competency of the High Court, Mwakibete, J. to entertain the second bail application. There are two aspects of this issue, the first one concerns the proper forum for deciding the bail C application, and the second one, relates to the principle of functus officio.

We start with the first aspect. Mr. Teemba has submitted that the High Court was not the proper forum to hear the bail application in terms of section 29(4) of the Economic and Organized Crime Control Act as amended by Act No. 12 of 1987. That section states:

After the accused has been addressed as required by sub-section (3) the magistrate shall, before ordering that he be held in remand prison where bail is not petitioned for or is not granted, explain and, for the purposes of this section the power to hear bail applications and grant bail

a) between the arrest and the committal of an accused person for trial by the Court, is hereby vested in the district court F and the court of a resident magistrate if the value of any of the property involved in the offence charged is less than ten million shillings;

(b) after committal of the accused for trial but before commencement of the trial before the Court, is hereby vested in the High Court;

(c) after the trial has commenced before the Court, is hereby vested in the court;

(d) in all cases where the value of any property involved in the offence charged in ten million shillings or more at any stage before commencement of the trial before the Court is hereby vested in the High Court.

Mr. Teemba has submitted that according to the citation in the title of the proceedings and the subsequent ruling of Mwakibete, J., the application was filed in the economic crimes jurisdiction of the High Court and not in the ordinary jurisdiction of the High Court.

That being the position, the matter which concerned property valued at shs. 18,000,000/= was filed and decided in the wrong forum.

Undoubtedly, the relevant caption reads as follows:

IN THE HIGH COURT OF TANZANIA AT ARUSHA

B ECONOMIC CRIMES JURISDICTION

MISC. CAUSE NO. 101 OF 1988

ORIGINAL ARUSHA DISTRICT COURT

CRIMINAL CASE NO. 29 OF 1988.

Admittedly, this caption suggests, when account is taken of the provisions of Rules 4 and 8 of the High Court Rules, 1984, Cap. 453 (GN. 23 of 25/1/85) that the bail application was filed in the wrong section of the High Court registry. The record of the proceedings however shows that when the application came up for hearing, it was heard by the High Court exercising its ordinary jurisdiction. The earlier formal irregularity was therefore cured by the High Court properly constituting itself. We are satisfied therefore that the bail application was entertained by the proper forum.

As to the other aspect of the issue - that is the question concerning the High Court being functus officio after the decision of Chua, J., we are satisfied that the second bail application before Mwakibete, J. was incompetent for the following reasons. In the earlier ruling by Chua, J., the High Court, concluded with the following words:

In this case I rule that the release of the applicant on bail in the face of the objections raised is not in the best interests of justice in the case. We have asked ourselves, what were those objections raised and upheld by Chua, J.? Mwakibete, J. was aware of them and he reproduced them as under:

1. That the charge being a serious one involving ivory great monetary value is likely to attract a severe H punishment in the event of the applicant being found guilty. That being the case the applicant is likely to find means to avoiding justice, including absconding.

I 2. That the applicant being non-Tanzanian may be tempted to flee even if his passport is impounded.

3. That the release of the applicant at this stage when investigation is not completed may mean that the A police will be hampered in their efforts to not other persons who are alleged to have participated in the commission of the offence.

Looked at in their essence, they boil down to two grounds upon which Chua, J. rejected the application for bail - B that is - firstly, that the applicants were likely to abscond because of the severity of the possible sentence and because they were foreigners; secondly that the applicants were likely to interfere with the investigations at that early stage of the case. In law, either one of these grounds is a sufficient cause for refusing bail. The first ground, as it was C conceded by Mr. D'Souza, is a static one - it could not change with the passing of time. The other one is variable and open to change of circumstances as time passed. If the latter ground was the only ground for refusing the D application, the High Court's jurisdiction would not have been exhausted by the decision of Chua, J. But in the light of the other static ground which by itself provides a sufficient barrier to a subsequent grant of bail, unless overturned by a higher court, it is obvious that the High Court was not competent to do what Mwakibete, J. did on the 22nd E June, 1988. For this reason, 

we are bound to allow the appeal by the D.P.P.

Before we do so however, we must deal briefly with two other related matters. First, we would like to emphasise for the avoidance of doubt and for guidance of the courts below, that where a bail application is rejected by a judge F or magistrate and a subsequent application is made to the same court, the proper practice is to bring the subsequent application before the same judge or magistrate, unless it is impracticable so to do. This will help such court to keep within its competency. Second, we note that Mwakibete, J. in granting bail in this case, took also into G account the health condition of one of the applicants, who was said to be an asthmatic case. We do not think that it is correct in principle to grant bail on that basis, since a disease like asthma can be cared for even when the patient is under remand custody in accordance with the normal remand prison regulations.

Having said this, we now hereby allow the appeal, quash the decision of Mwakibete, J. and restore the decision of Chua, J.

Appeal allowed. I

1988 TLR p262

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